Police v G HC Wellington CRI 2006-091-253
[2007] NZHC 302
•16 April 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2006-091-253
NEW ZEALAND POLICE
Appellant
v
G
Respondent
Hearing: 26 March 2007
Appearances: C Boshier for Appellant
T Petherick for Respondent
Judgment: 16 April 2007 at 1 pm
RESERVED JUDGMENT OF MILLER J
[1] The District Court dismissed a charge that Ms G drove with excess breath alcohol, finding that the police had failed to disclose requested information about the Alcotech AR1005 breath screening device, an abuse of process that may have prejudiced her defence. The Crown appeals by way of case stated.
The case stated
[2] Judge Mackintosh stated the material facts that she found as follows:
On Thursday 26 January 2006 the defendant was stopped by a Police
Officer, Constable Luijk, for speeding on State Highway One in Waikanae.
NEW ZEALAND POLICE V G HC WN CRI 2006-091-253 16 April 2007
She was required to undergo a breath testing process and was ultimately charged with driving with excess breath alcohol.
The defendant appeared at the Porirua District Court on 10 February 2006 and pleaded not guilty to one charge of driving with excess breath-alcohol. The matter was then set down for a status hearing for 19 April 2006 at 11.00 am.
On 13 February 2006, counsel for the defendant wrote to the Police seeking disclosure. In this letter the defendant requested a copy of the printout of the memory of the Alcotech Ar1005 breath-screening test device used on the defendant.
On 17 February 2006 the Police returned the letter to the defendant’s counsel with a hand written comment to the effect that the requested printout could not be provided because the Police had no knowledge that this information existed or that it was able to be obtained.
Further similar written communication ensued, including a letter in which defence counsel drew the Police’s attention to the Alcotech AR1005 device’s operation manual, which included instructions on how to download the memory. The Police continued to deny that the requested information was available.
A status hearing was held on 19 April 2006. The failure to disclose the printout was not raised by counsel for either party at the status hearing.
The Alcotech printout was not disclosed contrary to the prosecutor’s obligation of disclosure. That failure was the result of avoidable lack of knowledge on the part of the prosecutor.
The information sought could have assisted the defence. It was no longer available by the time of trial.
[3] The Judge has framed the issues thus:
In dismissing the information as an abuse of the process of the Court, having found that the failure to disclose the memory print out for the particular Alcotech AR1005 was a product of informant failure to make proper inquiries as to the production of a printout, did I err in law in:
(a) Concluding that the remedy of dismissal was available and appropriate notwithstanding that the defendant declined to seek an appropriate direction as to disclosure at the status hearing for this prosecution.
(b) Holding that the defendant might have been prejudiced in her defence by the fact of non-disclosure without considering whether the reasonable compliance provision of section 64(2) of the Land Transport Act 1998 applied to the evidence of the Police Officer who conducted the breath testing process.
(c) Holding that the defendant might have been prejudiced in her defence when there was no evidential foundation for the assertion that there had been no breath-screening test.
The appeal
[4] The Crown’s stance before me was that the Court’s power to stay a proceeding should not be used for disciplinary purposes, and there was no evidence that the defence was prejudiced by non-disclosure. Ms Boshier focused on the evidence that the machine was highly likely to have performed more than 500 tests between the time that Ms G was tested and the date of the first disclosure request. Turning to the questions of law, counsel focused in her written submissions on the proposition that the respondent was obliged to raise an issue such as outstanding disclosure at a status hearing so that it could have been attended to; failure to do so led the police to believe that there was no further issue about disclosure. So far as the second issue is concerned, counsel contended that even if an active breath screening test was not undertaken, the Judge should not have dismissed the information, for the police could rely on the reasonable compliance provisions of the Land Transport Act; a breath screening test is only a “gateway” and not evidence in itself of driving with excess breath alcohol. Lastly, counsel contended that there was no evidential foundation for the assertion that there had been a breath screening test, and that the Judge accordingly erred in determining that any prejudice could have resulted from non-disclosure. On the only evidence before the Court, the test had been carried out. Insofar as Ms G might have given evidence that there was no active test, the Judge acted prematurely by dismissing the information.
[5] Because Ms Boshier took issue with the Judge’s findings of fact, it is necessary to say a little more about the evidence, the Judge’s findings, and the Court’s approach to an appeal of this sort.
[6] The officer, Robyn Lucas (not Luijk as described in the case stated), gave evidence that on 26 January 2006 he stopped a speeding vehicle driven by Ms G on State Highway 1 near Waikanae. Because she smelt of drink and was flushed, he conducted a passive breath screening test. She failed, and he required an active breath screening test, which produced a “fail general” result indicating a breath alcohol level exceeding 400 micrograms of alcohol per litre of breath. He then required that Ms G accompany him to the station for an evidential breath test, which produced a result of 446 micrograms of alcohol per litre of breath. She did not avail herself of the opportunity to provide a blood sample.
[7] Because the charge was dismissed at the close of the police case, Ms G did not give evidence, although it is apparent from the cross-examination of the officer that she would have done so, taking issue with the officer’s evidence that he administered an active screening test at all. She would also have disputed the procedures adopted for the evidential breath test and advice of her right to a blood test, but I am not presently concerned with those matters.
[8] The Judge has outlined in the case stated the defence requests for discovery of a printout from the breath screening device, beginning on 13 February. The significance of the printout is that, if recovered before the machine overwrote its memory in normal use, it would have confirmed, presumably by reference to date and time, whether Ms G underwent an active breath screening test. The defence contends that such a test is a prerequisite to the administration of an evidential breath test; that being so, failure to carry out an active screening test renders the subsequent evidential test unlawful.
[9] Because the issue was raised at the start of the hearing in the District Court, the officer gave evidence about the likelihood of the information being available when the request for disclosure was made. It appears that when the memory reaches capacity, the machine overwrites the oldest test as each new test is administered. The evidence did not establish the memory capacity of the AR1005, but all concerned appear to have assumed it was about 500 readings. That number was
mentioned in a previous decision, Police v Sims (DC Masterton, 15 October 2003), in which Mr Petherick also appeared. A printout from the AR1005 machine in that case showed the result of 500 tests. But that was not evidence in this case, and Mr Petherick maintained before me that the capacity of the machine is in issue, because there are different versions of the AR1005.
[10] In the result, the evidence addressed the question whether the machine was likely to have carried out more than 500 tests between 26 January and the date, 13
February 2006, when details of the memory were requested. The officer gave evidence that he conducts on average 15 breath screening tests per day when working. The machine concerned is assigned to his patrol car, which is shared among 12 other officers. When the constable is not working, the machine is in “fairly constant use” by these officers. On 4 February 2006, the constable was also involved in a major drink driving operation near the Wellington motorway, during which some 20,000 drivers were tested. He personally tested between 400 and 500 people that day, using this machine.
[11] The disclosure request of 13 February, which was sent by fax, stated that the machine has a limited memory which overwrites itself if not downloaded, but nothing was done by the police in response to that warning. The constable had not encountered such a request before, so he referred it to the prosecutions department. Defence counsel faxed a further letter on 27 March, pointing out that the information about how to download this material would be found in the machine’s operating manual. The officer in charge of the case returned the letter to the defence, advising that there was no such thing to his knowledge. The Judge found that he did not know the Alcotech machine contained a memory at all. However, the point was not new, for the same issue had been dealt with in Police v Sims, where Judge Dalmer dismissed the information because he concluded that there had been a deliberate failure to supply a printout from the same type of machine. The hearing in the present case was held on 1 June 2006, by which time it was common ground that the information was not recoverable.
[12] The Judge recorded that she was being asked to dismiss the information for abuse of process. She referred to Police v Allen [1999] 1 NZLR 356 and Attorney- General v District Court at Hamilton [2004] 3 NZLR 777, and in particular the criteria that Randerson J set out at paragraph 57 of the latter judgment.
[13] The police accepted that there had been a failure to disclose, and that the information requested was readily obtainable although the police did not know that at the time. The requests were specific and pressing. The police could have taken some basic steps to respond to the defence request, checking with the legal section for cases that related to this issue or with the ESR, which is familiar with the machines, or simply locating and checking the manual.
[14] Turning to the evidence that the machine may have been used more than 500 times before the request for disclosure was made, the Judge held that she did not know whether Ms G ’s breath test result was still on the machine on
13 February. It might have been overwritten, but it might not. She was not satisfied that the constable’s evidence determined that point in favour of the police.
[15] The Judge reasoned that there had been prejudice to the defence, in that counsel had been unable to check whether the point was open to be taken and may have been denied an opportunity to prepare a proper defence and arrange expert evaluation or analysis of the memory. She considered whether there was a remedy short of dismissal that would achieve a fair trial for Ms G . The police had not sought an adjournment, which is the usual remedy for failure to disclose, and in any event the information would no longer be available. Accordingly, she dismissed the charge for abuse of process due to non-disclosure.
The approach to appeals by way of case stated
[16] Mr Petherick contended that it was not open to this Court to review the evidence about the number of tests that the machine had performed between 26
January and 16 February, because the Court cannot look past the express finding that
the information may have been available. He also contended that there was no evidence that the memory of the machine was confined to 500 tests.
[17] The appeal is brought under s.107 of the Summary Proceedings Act, which provides that where any information has been determined by a District Court, either party may, if dissatisfied with the determination as being erroneous in point of law, appeal to this Court by way of case stated for the opinion of the Court, on a question of law only. The scope of the Court’s inquiry on such an appeal has been examined in Auckland City Council v Wotherspoon [1990] 1 NZLR 76 and Police v Elliott (HC Tau, CIV 2004-470-29, 21 October 2004). Those decisions establish that the only possible challenge to the District Court’s finding as to a primary fact is that there had been no evidence to support it before that Court, while the only possible challenge with respect to inferences is that on the primary facts found or accepted by the District Court the inference urged on this Court by the appellant is the only reasonably possible one.
[18] In this case, Ms Boshier contended essentially that the only possible finding available to the District Court Judge was that the memory of the machine had been overwritten by the time the discovery request was made. She invited me to infer that the machine had a memory capacity of 500 tests. I am not prepared to accept those submissions, partly because, in the absence of disclosure, the memory capacity of the machine had not been established and partly because I infer that the Judge entertained reservations about the reliability of the constable’s evidence on this point. It follows that I must accept the Judge’s conclusion that the police had failed to show that the memory had already been overwritten when the defence sought disclosure.
The jurisdiction to stay an information for abuse of process
[19] The starting point is the judgment of the Court of Appeal in Fox v Attorney- General [2002] 3 NZLR 62, in which the Court held that official conduct warranting a stay will often involve bad faith or some improper motive, but that a stay may also be granted for a change of course by the prosecution that has a prejudicial effect on
an accused. To stay a prosecution, so precluding a decision on the merits, is an extreme step which is to be taken only in the clearest of cases.
[20] The criteria to be applied, as the District Court Judge recognised, were outlined by Randerson J in Attorney-General v District Court at Hamilton [2004] 3
NZLR 777 at paragraph 57:
The Court’s approach must always be discretionary in nature and requires the exercise of judgment rather than the application of inflexible rules. Relevant considerations include:
(a) Whether the failure to disclose is due to inadvertence, inefficiency or to deliberate conduct;
(b) Whether the police or prosecuting agency has acted in good faith;
(c) Whether the failure to disclose is relevant in the sense that the non– disclosure of the material could damage the prosecution case or advance that of the defence;
(d) The extent of any prejudice to the accused in the conduct of his or her defence as a result of the non–disclosure;
(e) Whether the accused can nevertheless receive a fair trial without undue delay; and
(f) Whether remedies short of stay or dismissal could achieve a fair trial (such as an adjournment, the exclusion of evidence, the right to call rebuttal evidence, or a limited stay until relevant material is produced).
[21] There is no question of bad faith in this case; the failure to disclose in the face of a clear and specific request was due to ignorance. But non-disclosure may have put the defence in a position where it was unable, on Ms G ’s proposed evidence alone, to raise a reasonable doubt about whether an active breath screening test was administered at all; that conclusion follows from the Judge’s finding that the information may have been available when requested and the officer’s unequivocal evidence that he did administer an active screening test. The remaining question is the extent of any damage and resulting prejudice to Ms G in the conduct of her defence. The answer to that question depends on the significance in law of a failure to carry out an active breath screening test, which is the second of the questions identified in the case stated.
Do the reasonable compliance provisions of the Land Transport Act apply to failure to administer an active screening test?
[22] Section 69 of the Land Transport Act relevantly provides:
Who must undergo evidential breath test
(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if—
(a) The person has undergone a breath screening test under section
68 and it appears to the officer that the test indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath; or
(b) It appears to the officer that the person is younger than 20 and that a breath screening test undergone by the person under section 68 indicates that there is some alcohol in the person's breath; or
(c) The person fails or refuses to undergo a breath screening test without delay after having been required to do so by the officer under section 68; or
(d) The person could be required to undergo a breath screening test without delay under section 68 but cannot be tested because either a breath screening device is not readily available or for any reason a breath screening test cannot then be carried out, and there is good cause to suspect that the person has consumed drink.
(2) If it is not practicable for a person to undergo an evidential breath test at a place to which the person has accompanied an enforcement officer under subsection (1), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo an evidential breath test or a blood test (or both).
(3) For the avoidance of doubt, it is declared that an enforcement officer may require a person to accompany the officer to a place under subsection (1) if—
(a) It is likely that the person can undergo an evidential breath test at that place, whether or not it is likely that the person can undergo a blood test at that place; or
(b) It is likely that the person can undergo a blood test at that place, whether or not it is likely that the person can undergo an evidential breath test at that place.
[23] These provisions establish that an evidential screening test is normally a prerequisite to a requirement to accompany for an evidential breath test or blood test. The legislation recognises exceptions but they are not relevant in this case.
[24] However, Ms Boshier contended that the Judge overlooked s.64(2), which provides:
It is no defence to proceedings for an offence that a provision forming part of [sections 68 to 75A, and 77] has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[25] I accept Ms Boshier’s submission that there must be circumstances in which s.64(2) is available although an active breath screening test was not undertaken. The legislation itself recognises that, both by extending reasonable compliance to s.69 and by prescribing circumstances, in s.69 itself, in which an active screening test is not required. It is also the evidential test or blood test, as the case may be, that supplies the evidence of the driver’s alcohol level for purposes of any resulting prosecution.
[26] However, the starting point is that except as specified in s.69 a failed screening test is necessary before the officer may require the motorist to accompany the officer for an evidential test. It results in a significant interference with liberty and exposes the motorist to a risk of arrest and prosecution should she fail to comply. Had she raised a reasonable doubt about the active screening test, the informant would have been required to establish reasonable compliance in circumstances where the omission cannot lightly be excused: see for example Police v Wallis (HC Dun, AP 30/01, 22 May 2002). For these reasons, it is not possible to say that the Judge was wrong to conclude that Ms G might have been prejudiced in her defence. I add that there is nothing in the Judge’s findings to suggest that the police would have discharged the burden of proving reasonable compliance on the facts.
The remaining questions
[27] I can deal briefly with the remaining questions (a) and (c) in the case stated. I conclude that the Judge did not err by reaching her conclusion notwithstanding Ms G ’s failure to raise disclosure at a status hearing. Ms Boshier did not press this point in oral argument, recognising that on the facts of this case it could have made no difference. The status hearing was held on 19 April 2006 and the Crown’s case is that the memory was by then long overwritten. It is not necessary to consider in what circumstances, if any, the defence might be obliged to raise such an issue before the hearing.
[28] So far as the third question is concerned, I do not think the Judge erred in law by dismissing the information before Ms G gave evidence. It was common ground before her that the records requested were probative of a point that had been put in issue in cross-examination and in the discovery request. Indeed, the records might have resolved the issue conclusively. That being so, the defence did not have to establish any further evidential foundation by, for example, calling Ms G to deny that she underwent an active screening test.
Decision
[29] Each of the three questions in the case stated is answered “no”.
"In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of
1.00 pm on the 16th day of April 2007."
Solicitors:
Crown Solicitors Office, Wellington for Appellant
Gresson Grayson, Hastings for Respondent
F Miller J
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